What’s next for PFAS litigation?

RPC’s Lucy Dyson explores how growing public awareness of PFAS and the associated health and environmental concerns has seen a rise in litigation in the US that parallels asbestos as a toxic tort, with claims over chemical contamination in Europe also on the rise.

Litigation concerning per- and polyfluoroalkyl substances (PFAS), or “forever chemicals”, continues to gain traction, both outside the US and against manufacturers that incorporate them into their products.

The persistent nature of these chemicals and their potential harmful effects on human health and the environment are becoming more widely known and we are seeing an increase in PFAS-related claims in Europe and elsewhere in the world.

The US Environmental Protection Agency (EPA) has reportedly identified more than 12,000 chemical compounds within the PFAS family.

The term “forever chemical” refers to their very slow degradability, mobility and persistence in the environment, due to their chemical composition. These chemicals are abundant in our daily lives, including cookware, carpets, food packaging, medical devices, cosmetics, clothing and firefighting foam.

Knowledge of the existence of these chemicals and their potential effects has only come into the public domain in the last 20 to 30 years.

The EPA has noted potentially deleterious health effects from human exposure to PFAS including cancers, impaired immune systems, endocrine disruption, thyroid disease, developmental delays in children and others.

Longer-chain PFAS – such as perfluorooctanoic acid and perfluorooctanesulfonic acid – and their presence in the environment are more widely known, whereas awareness of the shorter-chain PFAS (including GenX) is still evolving.

The increasing public consciousness of PFAS bears a striking resemblance to asbestos and how it emerged as a toxic tort – spawning litigation which is still running decades later.

PFAS litigation in the US is well-developed and for the past three decades has mainly focused on environmental (remediation) and personal injury claims against the main manufacturers of these chemicals.

At present, there is ongoing litigation concerning alleged contamination of water systems with PFAS from manufacturing plants and PFAS in firefighting foam, including allegations that its use at military bases and airports has contaminated groundwater.

There are also lawsuits brought by firefighters who allege that they have suffered injury as the result of exposure to PFAS in firefighting foam, as well as in clothing and other equipment.

In recent years, lawsuits against other industries such as fast food, cosmetics and textiles have also started to emerge. Last year, claims were brought against McDonald’s, Burger King and Coca-Cola, whose packaging and/or food products are alleged to contain PFAS.

There have also been claims against L'Oréal, Rimmel and others in relation to PFAS in make-up products and misinformation claims concerning PFAS in menstrual underwear. In recent months, the presence of PFAS in contact lenses has also been in the spotlight.

Although claims in Europe are still at an early stage compared to the US, litigation concerning alleged PFAS groundwater contamination is on the rise and we can expect an uptick in such claims, together with personal injury/property damage claims.

For context, it is thought that there are more than 17,000 sites in Europe where high levels of PFAS are detectable.

In Sweden, a group of inhabitants from Kallinge are seeking compensation on the basis that groundwater was contaminated with high levels of PFAS due to firefighting foam being used at nearby military bases.

In 2022, the Flemish government announced a €571mn agreement with 3M, for remediation of alleged PFAS contamination of the Scheldt River. Elsewhere, the Dutch government is reportedly evaluating legal action in relation to alleged contamination of the western part of the Scheldt River, which stretches across France, Belgium and the Netherlands.

In March 2023, it was announced that 13 municipalities from the southwest of Lyon intend to launch group litigation for compensation in relation to PFAS contamination of the Rhône.

Elsewhere in the world, May 2023 saw a A$132mn class action settlement between the Australian government and thousands of landowners whose properties were allegedly contaminated by PFAS due to use of firefighting foam at air force bases. This follows a 2020 settlement with three communities for A$212mn.

Clearly the PFAS legal landscape is rapidly expanding. In addition to the main chemical manufacturers, we can expect an uptick in litigation against companies which use PFAS in their products.

For corporates, this is an uncertain time given the regulations on PFAS are still being deliberated in Europe (a widespread ban on their use is not expected until 2025, at the earliest) and the class of chemicals is so vast.

Moreover, the issue has gained more prominence against the backdrop of an ESG-centric era where collective redress is becoming more prevalent in certain jurisdictions, coupled with litigation funding being more accessible.